Coppock v. Helfer

         Raphael M. Solot, Denver, for plaintiff-appellee.

         Phelps, Hall & Keller, Glen E. Keller, Jr., John C. Mitchell III, Denver, for defendant-appellee.

         Gerald M. Madsen, Littleton, for defendant-appellant.

         ENOCH, Judge.

         James J. Coppock and his daughter Janine died in a common accident on December 10, 1969. Thereafter, Glenn J. Helfer, an attorney, assisted Doris M. Hartman, the mother of James, in claiming the proceeds of a life insurance policy on the life of James issued by the Prudential Insurance Company of America and in collecting certain back wages owed to James.

         On June 9, 1971, Marjorie May Coppock, the former wife of James, as administratrix of the estate of Janine Coppock, brought this action against Hartman, Helfer, and Prudential alleging that the insurance proceeds and the back wages were wrongfully paid to Hartman. Prudential answered and filed a cross-claim against Hartman and Helfter for the amount erroneously paid and for exemplary damages. Helfer answered denying all claims against him. Service of process was not obtained on Hartman, and she was not involved in the trial court proceedings and is not a party to this appeal. Prior to trial, Tracy Lynn Coppock, a surviving daughter of the marriage of James and Marjorie, was joined as a plintiff. The parties later stipulated that Tracy was the sole rightful heir since, by the operation of the simultaneous death statute, James was considered to have survived Janine.

         Confessing that it had paid the proceeds of the policy to the wrong party, Prudential deposited the full amount of the proceeds, $4,176, in the district court. Prior to trial, a summary judgment was entered in favor of Tracy against Prudential for $4,176. That judgment is not involved in this appeal.

         Trial of the other issues was to a jury which returned a verdict in favor of Tracy against Helfer and assessed no actual damages but awarded $2,000 in exemplary damages. The jury also returned a verdict in favor of Prudential on its cross-claim against Helfer and assessed $2,088 in actual damages and no exemplary damages. Helfer has appealed from the judgment entered on the two verdicts. We affirm the award of actual damages to Prudential, but reverse the judgment awarding exemplary damages to Tracy.

         I.

          Helfer contends that, since there is no evidence that Prudential was damaged by Helfer, the $2,088 judgment awarded Prudential is 'excessive.'

         Helfer assisted Hartman in the preparation and filing of a small estate petition for the back pay and prepared an affidavit supporting Hartman's claim for the proceeds of the life insurance policy. Prudential, upon the basis of the affidavit filed by Hartman, delivered to Helfer a check for $4,176 made payable to Hartman. She endorsed the check and the proceeds thereof were deposited in Helfer's trust account. From that trust account, Hartman was paid the total amount, less Helfer's attorney's fees, in two installments. Helfer sent Hartman $2,019 on December 4, 1970, and on February 10, 1971, a like amount was paid to Hartman. Prior to the second payment, Helfer received notice of the existence of another heir, Tracy. There was some evidence that Helfer knew or should have known of the possible existence of another heir at the time the insurance affidavit was prepared. There is sufficient evidence upon which the jury could properly conclude that Helfer knew or was culpably negligent for not knowing that the insurance proceeds did not rightfully belong to Hartman. By the amount of the verdict, it can be concluded that the jury determined that Helfer did not know of Tracy's existence at the time of the payment of the first installment to Hartman, but did know, or should have known, at the time of the second payment.

         II.

          Helfer further claims that the court erred in allowing the verdict of $2,000 exemplary damages to stand in favor of Tracy when there was no award of actual damages. We agree. The rule in Colorado is clear that, before exemplary damages may be awarded, actual damages must be established. C.R.S.1963, 41--2--2. Ress v. Rediess, 130 Colo. 572, 278 P.2d 183.

         III.

          The trial court granted Helfer's motion to exclude all witnesses from the courtroom until called to testify. However, one exception was made. Marjorie's original attorney was allowed to remain in the courtroom. Helfer alleges that the trial court abused its discretion in granting this exception. The attorney had withdrawn from the case prior to trial and was scheduled as a witness. Such separation of witnesses during the course of a trial is within the discretion of the trial judge, and a decision by the court granting an exception will not be overruled in the absence of an abuse of that discretion. Union Deposit Co. v. Driscoll, 93 Colo. 381, 26 P.2d 815; In re Mazuran, 88 Cal.App. 272, 263 P. 339. We find no abuse of discretion in the court's ruling.

         IV.

          Helfer's next contention is that the court erred in allowing the attorney who testified for Marjorie to re-enter the case and argue the motion for new trial. The Code of Professional Responsibility, DR 5--102, requires that a lawyer testifying in behalf of his client withdraw from the conduct of the trial. Ethical Consideration 5--9 explains the reason for this rule. 'An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility.' At the point in the proceeding when the attorney was permitted to re-enter the case, the fact finding function had been completed and the question of credibility of witnesses was not material. Under the circumstances, we find no reversible error.

         V.

         Helfer's final contention is that the court erred in refusing five of his tendered instructions. We have examined the record and the instructions that were given, and we find no error.

         Judgment for Prudential and against Helfer in the amount of $2,088 is affirmed. Judgment in favor of Tracy against Helfer in the amount of $2,000 exemplary damages is reversed, and the cause is remanded with directions to set aside that judgment.

         SILVERSTEIN, C.J., and PIERCE, J., concur.